Reference under Section 35G not maintainable where Tribunal followed binding precedent and the proper course was Section 35H.

An application under Section 35G of the Central Excise Act seeking reference to the High Court was found not maintainable where the Tribunal had decided the Modvat credit dispute on ramming mass by following a High Court ruling and a Larger Bench view. The text states that, in the event of conflicting decisions of two High Courts, the proper course is to seek a statement of case to the Supreme Court under Section 35H rather than a reference to the High Court under Section 35G. As no Section 35H application had been filed, the reference request was rejected.

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Issues: Whether an application under Section 35G of the Central Excise Act, 1944 seeking reference to the High Court was maintainable when the Tribunal had decided the dispute by following a High Court judgment and the larger bench view, and whether the application was liable to be rejected.

Analysis: The Tribunal noted that the underlying dispute on Modvat credit for ramming mass had already been decided in favour of the assessee by following the Calcutta High Court decision and the Larger Bench ruling of the Tribunal. It further observed that where there is a conflict between decisions of two High Courts, the proper course is to seek a statement of case to the Supreme Court under Section 35H of the Central Excise Act, 1944, not a reference to the High Court under Section 35G. Since no application under Section 35H had been filed, the requested reference to the Bombay High Court was not maintainable.

Conclusion: The reference application under Section 35G was not maintainable and was dismissed.

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